STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOLIDAY R. V. PARKS, INC., and ) BREEZY HILL TRAILER PARK, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 80-156RX

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on February 22, 1980. The parties were represented by counsel:

APPEARANCES

For Petitioner: Ronald A. Labasky, Esquire

Madigan, Parker, Gatlin, Swedmark and Skelding

Post Office Box 669 Tallahassee, Florida 32302

For Respondent: Eric J Haugdahl, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services Building One, Suite 406 1323 Winewood Boulevard

Tallahassee, Florida 32301

By petition to determine invalidity of an existing rule, filed January 25, 1980, petitioners seek a declaration that Rule 10D-26.37(3)(c) and Rule 10D- 26.37(5)(b) , Florida Administrative Code, are "invalid to the extent they require a separation distance between trailers in trailer parks and recreational units located in recreational vehicle parks." The rule provisions assailed by petitioners read as follows:

(3) Trailer Space - Each trailer

space shall be clearly defined and shall abut on a driveway or other clear space with unobstructed access to a public street. Trailer spaces in trailer parks hereafter constructed and trailer spaces hereafter added to existing trailer parks shall meet the following specifications:

(c) A minimum distance of ten (10) feet between trailers or any enclosed

appurtenances thereof shall be maintained at all times. Said ten (10) foot distance shall also be maintained between trailers and trailer park buildings or structures except where a dependent mobile home

space is served by its own toilet or utility building. All trailers or appurtenances shall be more than five

(5) feet from the exterior boundary of the trailer park. All trailers and appurtenances shall be placed as to leave public walkways, streets, highways,

right-of-ways, trailer park roadways and walkways clear and unobstructed.

Rule 10D-26.37(3)(c) , Florida Administrative Code.

(5) Recreation Units - Density and Separation - The term recreation units

as defined in this Subsection shall include all units defined in Subsection 10D-26.32

(2) , Florida Administrative Code, except trailers.

(b) Separation - Recreation units shall be separated from each other and from other structures by at least ten

(10) feet. Any accessory structure such as attached awnings, carports, or individual storage facilities shall, for purpose of this separation requirement, be considered to be part of the unit. All units or appurtenances shall be more than five (5) feet from the exterior boundary of the trailer park.

Michele Valletta, President of Breezy Hill Trailer Park, Inc., has been in business at the same location since 1957. There are now 169 spaces for mobile homes and 594 spaces for travel trailers. The park is connected to county water and sewer systems.

Lee Bryan, president of Holiday R. V. Parks, Inc. began in business in 1971. The park opened in 1972, in accordance with plans approved by state and county officials. This park is also connected to county water and sewage systems. Holiday R. V. Parks, Inc. has been cited for a violation of the minimum distance requirement.

As stated by respondent at the time of promulgation, the purpose and effect of the challenged provisions are "[to prevent the spread of disease through improperly constructed or maintained facilities. ii Joint exhibit No. 1. In the estimate of economic impact prepared by respondent at the time of the promulgation of the challenged provisions, respondent predicted that Rule 10D- 26, Florida Administrative Code, would "benefit the entire population of the state by preventing the spread of disease. . . " Joint exhibit No. 2.

In a letter to petitioners' counsel, Eanix Poole wrote, on behalf of respondent, that respondent was "very much concerned with accident prevention and, Particularly accidental death caused by fire." Joint exhibit No. 4. In the same letter, Mr. Poole stated "overcrowding in residential areas is also a concern which effects [sic] the health and well being of those involved." Joint exhibit No. 4.

The parties stipulated to the accuracy of the allegations in the final paragraph of page two, and the initial two paragraphs of page three of the petition filed January 25, 1980; and the same are incorporated herein by reference.

Petitioners have standing to challenge Rule 10D-26.37(3)(c) and (5)(h) , Florida Administrative Code, as respondent's counsel conceded at the final hearing. Proceedings, like the present one, brought pursuant to Section 120.56, Florida Statutes (1979), are limited to the question whether "the rule is an invalid exercise of delegated legislative authority." Section 120.56(1), Florida Statutes (1979).

The parties agree that the challenged rule provisions are authorized, if at all, by Chapter 381, specifically Section 381.031(1)(g) 3., Florida Statutes (1979), or by Chapter 513, specifically, Section 513.05 Florida Statutes (1979)

, which provides:

The Department of Health and Rehabilitative Services shall have general supervision of the health and sanitary conditions of all tourist

or trailer camps located in the state, and shall make, promulgate, and enforce such rules and regulations pertaining to the location, construction, equip- ment, and operation of such camps as may be necessary.

But petitioners contend that fire and accident safety considerations are outside the purview of these legislative grants of authority to respondent. They argue that the head of the Department of Insurance has exclusive authority, as State Fire Marshall, to promulgate rules pertaining to fire prevention and control.

While the State Fire Marshall does have broad authority to "promulgate all rules and regulations necessary to effectuate the enforcement of his powers and duties," Section 633.04, Florida Statutes (1979), nothing confers exclusive authority or responsibility on the State Fire Marshall for fire safety regulations in trailer parks.

In any event, petitioners have failed to meet their burden to show, by a preponderance of the evidence, that the challenged provisions are ii arbitrary or capricious or an abuse of administrative discretion." Agrico Chemical Co. v. State Department of Environmental Regulation 365 Se.2d 759, 763 (Fla. 1st DCA 1978)(reh. den. 1979.) cert den. sub nom. Askew v. Agrico Chemical Co., 376 So.2d 74 (Fla. 1979) . Just as spaces between trailers would facilitate access to trailers in the middle of the park by fire fighting equipment, so such spaces would facilitate access by ambulances or other emergency medical equipment.

Petitioner did not establish that disease could not be transmitted, by airborne germs or otherwise, a distance of ten feet. Nor did petitioner show that lower density lodging is irrelevant to the ability of people living in trailers and recreation vehicles to resist disease.

For the foregoing reasons, and on the foregoing authority, it is ORDERED:

The petition to determine invalidity of an existing rule is denied. DONE and ENTERED this 19th day of March, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Ronald A. Labasky, Esquire Post Office Box 669 Tallahassee, Florida 32302

Eric J Haugdahl, Esquire Assistant General Counsel Department of HRS

1323 Winewood Boulevard Building One, Suite 400 Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32361

Ms. Liz Cloud

Bureau of Administrative Code Room 1802, The Capitol Ltd Tallahassee, Florida 32301

Docket for Case No: 80-000156RX

Orders for Case No: 80-000156RX